Ojewale v Kearns and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Nuala Butler
• Judgment Date: 07 July 2021
• Neutral Citation: [2021] IEHC 476
• Court: High Court
• Docket Number: [Record No. 2020/228 CA]

Between

Tesleem Ojewale

Plaintiff/Appellant

and

Caroline Kearns and Frank Kearns

Defendants/Respondents

[2021] IEHC 476

[Record No. 2020/228 CA]

THE HIGH COURT

JUDGMENT of Ms. Justice Nuala Butler delivered on the 7th day of July, 2021.

1 This judgment follows the court's earlier judgment in the same case [2021] IEHC 431 and should be read with that judgment. The earlier judgment allowed the plaintiff's appeal from the decision of the Circuit Court striking out his proceedings as being statute barred and awarding costs against him. That issue had been determined by the Circuit Court as a preliminary issue at the request of the defendants. The substantive proceedings between the parties (a claim for personal injuries arising from a road traffic accident) remain extant. This judgment deals with the costs of the appeal.

2 Both parties have provided helpful written submissions and their respective positions can be briefly outlined. The plaintiff relies on the general principle that costs follow the event in seeking the costs of the preliminary issue in both the Circuit and High Courts. The plaintiff also seeks a certificate for senior counsel on the basis that the issues in the appeal were complex and because of what is characterised as the defendant's reluctance to accept the applicability of previous case law.

3 The defendants concede that the plaintiff should be entitled to the costs of the Circuit Court application but submit that no order should be made as regards the costs of the appeal or, alternatively, that the costs of the appeal should be made costs in the cause and reserved to the trial judge in the Circuit Court. The legal basis for differentiating between the plaintiff's costs in the Circuit Court and in the High Court is not entirely clear. A number of reasons are advanced as to why costs should not be ordered against the defendants in respect of this appeal, or at least not at this stage. If followed, those reasons, which relate to the complexity of the issues and the fact that there were proper grounds for raising and trying those issues, apply equally to the proceedings in the Circuit Court. In suggesting that the costs of the appeal be made costs in the cause in the substantive Circuit Court proceedings, the defendants point to the fact that the plaintiff's action is fully defended and may not succeed. No particular argument is made as regards a certification for senior counsel.

4 The plaintiff's submissions note that the proceedings were instituted prior to the commencement of s.169 of the Legal Services Regulation Act 2015 and refer to a number of cases in which the potential retrospectivity of that provision is considered. The defendant's submissions are made on the basis of O.99 of the Rules of the Superior Courts as it stood prior to amendments made subsequent to the commencement of s.169 and no mention is made of the 2015 Act. The plaintiff also refers to my own judgment in Construgomes and Carlos Gomes SA v. Dragados Ireland Limited [2021] IEHC 139 to suggest that the difference between the pre-2015 Act and post-2015 Act regimes is not material for present purposes – i.e. as regards the application of the costs follow the event principle to the outcome of this interlocutory application. In circumstances where the plaintiff does not contend that the 2015 Act would make a material difference or should be applied and the defendant has assumed its non-application and thus has not canvassed the issue either way, I do not propose addressing the question of the potential retrospectivity of s.169 of the 2015 Act. Instead, I propose proceeding on the basis that broadly speaking the parties accept the principle that costs follow the event should apply and that the issue between them is the identification of “an event”, in essence whether the interlocutory character of this judgment precludes it from being an event to which the principle should be applied. Further, assuming that my earlier judgment is an “event”, I must consider whether the arguments raised by the defendants constitute special circumstances such that the normal rule should not be applied in this case. I note that the defendants set out the provisions of O.99, r1(4A) in their submissions but have not expressly argued that it would not be possible for the court “ justly to adjudicate upon liability for costs on the basis of the interlocutory application”.

5 Much of the difference between the parties turns on their characterisation of the “interlocutory” nature of the order made and, consequently, on whether that order is a final order comprising an event for cost purposes. The term interlocutory is used to describe an order made during rather than at the conclusion of legal proceedings. It frequently refers to an order that is not final but instead is one which applies provisionally until final...